At stake: The Constitution

By CAL THOMAS Columnist Published: October 12, 2016 11:00 AM

This election is about a lot of things, but it is fundamentally about the U.S. Constitution and whether federal judges will adhere to their oath to "... faithfully and impartially discharge and perform all the duties incumbent upon me ... under the Constitution and laws of the United States," or dilute, attack and destroy our founding document.

That the Constitution is on the ballot in the persons of Hillary Clinton and Donald Trump, who hold differing views of it and have pledged to appoint radically different judges to federal benches, is revealed in a recent op-ed for Slate by Richard Posner, a judge for the U.S. Court of Appeals for the 7th Circuit and a senior lecturer at the University of Chicago Law School.

In his op-ed, as reported by The Washington Times, Judge Posner claims to see "absolutely no value" in studying the Constitution because "18th-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century." I suspect if they had seen modern culture with our fixation on Kim Kardashian, they might have retreated to England.

Even the Bill of Rights, says Posner, "do not speak to today."

Wow. Freedom of speech, assembly, the press, religion, no warrantless searches and more are outmoded concepts? Who knew?

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Posner continued: "I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries -- well, just a little more than two centuries, and of course less for many of the amendments)."

After receiving severe criticism, Judge Posner apologized for his "careless" remarks, but he still doesn't think the Constitution is relevant for today because, you know, those dead white guys owned slaves and didn't have the internet.

Imagine if such illogic was applied to other creations of the 18th century. There was much literature and music, in addition to political writings, that came from that era. Are Jonathan Swift, Voltaire, Goethe, William Blake, Henry Fielding, all of the Founding Fathers, Alexander Hamilton (there's a modern hit musical about him) and the music of Bach and Beethoven, to mention a few, also irrelevant today?

This is the arrogance of some judges who think they know better than the Founders. It is the choice in this election between a president and the judges he or she will appoint who believe, as late Justice Antonin Scalia did, that the Constitution sets boundaries for limited government in order to guarantee liberty to American citizens, or whether it means only what an unelected judge says it does.

Posner is no fan of Scalia. In a clever turn of phrase he writes, "Let's not let the dead bury the living."

He continues: "I worry that law professors are too respectful of the Supreme Court, in part perhaps because they don't want to spoil the chances of their students to obtain Supreme Court clerkships. I think the Supreme Court is at a nadir. The justices are far too uniform in background, and I don't think there are any real stars among them ..."

Washington Times reporter Jessica Chasmar sought reaction from David Bernstein, who teaches at Antonin Scalia Law School, formerly George Mason University School of Law. Bernstein described Posner's attack of Scalia as "revolting," adding, "We all know Posner doesn't think highly, to say the least, of Scalia. Judging from what Posner writes, the distaste seems to stem primarily from jealousy -- Posner thinks he would be a far better Supreme Court justice than Scalia was, and he resents that as a 'lower court' judge, his writings, though highly influential in their own right, will never get the same attention and accolades as Scalia."

This election will determine the direction of our courts and whether judges will write laws, or interpret under the Constitution the intent of the legislators who wrote them. It will also decide whether the Constitution remains a self-authenticating document, protecting our liberties from encroaching government, or something that in the minds of judges like Richard Posner can be shredded along with our liberties.